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A project of the People's legal Front
In the Missouri Court of Appeals Southern District
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Marc Perkel, Plaintiff/Appellant, Vs Vicki Stringfellow Defendant/Respondent |
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Appeal: 22948 Case No.: 198CC1753
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Motion to Strike Orders of this Court for Voidness
COMES NOW, Appellant Marc Perkel, to challenge the validity of the order of the court dated November 9th 1999 joining cases 22947-2 and 22947-2 on the basis that it is a void order because it lacks the signature of a judge. This order was issued by Sandra L. Skinner, who is not a judge, and is without authority to issue orders of the court. Besides the plain language of Rule 74.01(a) and Administrative Rule 4.09(6), in the famous 1998 case of Slay v. Slay, 965 S.W.2d at 845 the Missouri Supreme Court stated:
In Slay, No. 80405, and Gray, No. 80406, a document entitled "judgement/ORDER" was filed. In Bell, No. 80407, a document entitled "judgement/DECREE OF DISSOLUTION" was filed. Each document is signed by "M. Zane Yates, Commissioner." In each case, a party appeals the "judgement" entered. Appeals dismissed.
Article V, section 1 of the state constitution vests the judicial power of this state in this Court, the court of appeals, and the circuit courts. These courts are composed of judges. Mo. Const. art. V, sections 2, 13, 15, and 16. Although the documents filed in these cases are denominated "judgement," they are not signed by a judge. Because the documents are not signed by a person selected for office in accordance with and authorized to exercise judicial power by article V of the state constitution, no final appealable judgement has been entered, and this Court is without jurisdiction.
The Missouri Supreme Court has clearly upheld the Missouri Constitution and the plain language of the Rules deciding that orders not signed by a judge are void. In Slay, the court voided the orders of commissioners who are a lot closer to being judges that the Clerk of the Court is. The Clerk has only administrative powers and in no way has any judicial powers. Research attorneys also lack judicial powers. The order of the court contains nothing to indicate that it was issued by a judge, or even that a judge even read the order or is aware is was even issued. The appellant contends that the reasoning behind the rule and the Slay decision is to ensure that judges, and only judges, make orders of the court, and that the power to make orders of the court is not delegated to non-judges such as commissioners, research attorneys, or clerks.
This issue of voidness is of particular importance to the appellant in that this case on appeal deals with the validity of orders that lack the signature of a judge. If the appellant were to accept this order as an order of the court, the respondent could make an argument that by accepting the order of a mere clerk that the appellant, because of waiver and estoppel, can not complain about an order presumed to be written by a commissioner. Therefore, the appellant must challenge this order.
In contrast with the underlying issue of the unsigned handwritten order, and the original order of Judge McBeth which was also unsigned, this order was at least typed and had someone's signature on it. However, the fact that this order of this court wasn't signed by a judge, and that it appears that the policies and procedures of this court are not in compliance with the constitution of Missouri, by routinely allowing non-judges to issue orders of the court, the appellant questions if this court is capable of rendering a fair and constitutional decision. Can this court render a correct decision when this court is not in compliance with the very rules that are the subject of appellant's points on appeal?
WHEREFORE, the appellant prays for an order, signed by a judge, addressing the issues raised herein.
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Marc Perkel * Appellant * 11-15-99
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